Controller, Amanat Hai Mazhabi v. Wahid Khan — 1955 DIGILAW 133 (MP)

ORDER : This is a reference under S. 113, Civil P.C., for the opinion of this Court as to whether the provisions of the Bhopal Charitable and Religious Trusts Act, 1934 (Act No. 6 of 1934) are still applicable to the State of Bhopal or would be deemed to have been repealed by virtue of S. 5 of the Merged States (Laws) Act, 1949. 2. The facts, about which there is no dispute, in brief are that prior to the merger of the State of Bhopal with the Dominion of India, there was the Bhopal Charitable and Religious Trusts Act (Act No. 6 of 1934) in force in this State. On the merger of the State, the Dominion Legislature passed the law called as the Merged States (Laws) Act, 1949 and under S. 5 of this Act old enactments corresponding to the laws introduced by this Act were repealed. Three Central Acts along with others which were extended to Bhopal State are the Code or Civil Procedure, 1908 (5 of 1908), the Charitable Endowments Act, 1890 (6 of 1890), and the Charitable and Religious Trusts Act, 1920, (14 of 1920). Certain provisions of these enactments are similar to those of the Bhopal Charitable and Religious Trusts Act, 1934, while a few others are dissimilar. In the Bhopal Act there are certain provisions which are not contained in the Central Act. The plaintiff, namely, the Controller, Amanat Hai Mazhabi wa Khairati, Bhopal had instituted the present suit by virtue of the powers conferred upon him as controller under the Bhopal Act. The suit is with respect to certain Waqf properties against Wahid Ali Khan and others for rendition of account and for handing over possession of those properties. The suit was apparently based on the Bhopal Charitable and Religious Trusts Act, 1934. It was contended on behalf of the defendants that this Act was no longer applicable to Bhopal State, having been repealed under S. 5, Merged States (Laws) Act, 1949. The learned Subordinate Judge, Bhopal before whom the suit is pending, has made this reference to me. He was of opinion that the Bhopal Charitable and Religious Trusts Act, 1934, was inoperative since January, 1950. The reference is made in view of the fact that the enforceability of the enactment was being challenged. 3. Section 5, Merged States (Laws) Act, 1949 runs as below : "5. Repeal of corresponding laws. He was of opinion that the Bhopal Charitable and Religious Trusts Act, 1934, was inoperative since January, 1950. The reference is made in view of the fact that the enforceability of the enactment was being challenged. 3. Section 5, Merged States (Laws) Act, 1949 runs as below : "5. Repeal of corresponding laws. If immediately before the commencement of this Act there is in force in any of the new Provinces or merged States an Act, Ordinance. Regulation or other law corresponding to an Act, Ordinance or Regulation specified in the Schedule, whether such Act, Ordinance or Regulation is in force by virtue of an Order under the Extra-Provincial Jurisdiction Act, 1947 (47 of 1947), or by virtue of any other legislative power, such corresponding law shall upon the commencement of this Act,- (a), in a new Province, stand repealed, and, (b) in a merged State, stand repealed to the extent to which the law relates to matters with respect to which the Dominion legislature has power to make laws for a Governor's Province." The term "new Provinces" has been defined in S. 2(b) of the Act as the Chief Commissioners' Provinces constituted by the States' Merger (Chief Commissioners' Provinces) Order, 1949, as amended by the States Merger (United provinces) Order, 1949. It is not disputed that the State' of Bhopal is a new Province as denned in this Section and consequently by virtue of S. 5 of the Act the Bhopal Charitable and Religious Trusts Act, 1934, shall stand repealed if in the eye of law it is a law corresponding to the three Central Acts detailed above which were extended to Bhopal State. The term "corresponding law" has not been defined in any of the enactments and consequently it will have to be given its ordinary meaning. In Webster's New Twentieth Century Dictionary the meaning of the word "Correspond" has been given as "To be correspondent or congruous; to be adapted to; to be suitable to; to be adequate or proportionate to; to agree to fit." while in the Words and Phrases Judicially Defined by Roland. In Webster's New Twentieth Century Dictionary the meaning of the word "Correspond" has been given as "To be correspondent or congruous; to be adapted to; to be suitable to; to be adequate or proportionate to; to agree to fit." while in the Words and Phrases Judicially Defined by Roland. Burrows, K.C., it is expressed as below :- "The settlement was to be made 'to correspond as far as may be practicable with the limitations of the barony.' 'To correspond' does not usually, or properly, mean 'to be identical with' but 'to hormonise with', or 'to be suitable to', - 'Sackvillewest v. Holmesdate', (Viscount) (1870)' 4 HL 543 (A), Per Lord Cairns at pp. 575, 576." In Stroud's Judicial Dictionary, III Edn., the term has been defined in greater detail not only with reference to the case referred to by Roland Burrows but also to another Act on assessment of taxes. This additional portion runs as below : "Corresponding assessment" Burgh Police (Scotland) Act, 1892 (55 and 56 Viet, C 55) S. 373(1) does not mean identical in omnibus, and e.g., the assessment under the Greenock Police Act "Corresponds" to the General Improvement Rate (defined by S. 359) and as the Port and Harbour of Greenock were exempt from the Public Health General Assessment under Public Health (Scotland) Act, 1897 (60 and 61 vict., c. 38) S. 136 - 'Greenock Harbour Trustees v. Greenock Magistrates', 42 Sc LR 848 (B)". 4. The legal and also the ordinary meaning of the term 'corresponding' or 'to correspond' is, therefore, not that the two things must be identically the same. They would be regarded to correspond to one another if they harmonise with each other. In the case of the applicability of laws, these words can be given a much clearer meaning. The corresponding law if framed by the various States will not always be similar in every respect. A law to be framed by a particular State on one subject will be so framed on the basis of the conditions existing in that State and the view that the legislators have for remedying the defects, if any existing within the state or on their ideas as to how the administration should be carried on within the State. A law to be framed by a particular State on one subject will be so framed on the basis of the conditions existing in that State and the view that the legislators have for remedying the defects, if any existing within the state or on their ideas as to how the administration should be carried on within the State. In other words, the law if framed would depend upon the ideas of the legislators themselves and will greatly depend upon the conditions existing within the State. The opinions of the legislators of various States will not always be the same and similarly the conditions existing would be different. In such a case, though the law to be passed by the various States may relate to the same matter and consequently would be corresponding laws, they will not have identical provisions in the enactments. Some of the provisions would be common or similar, while the others may be poles apart. For example, the legislature of one State may like to confer certain powers upon an officer to be appointed by the Government. Any other legislature may like to give such powers to a non-official or to a committee of both officials and non-officials. A third body may consider that the remedy should be sought for not by any officer or by a committee but by the members of the public themselves having an interest therein. In other words, the law to be passed will vary from one State to the other, though on the same matter, but the various laws will be deemed to be corresponding laws. In my opinion, therefore, a law will be deemed to be a corresponding law, as contemplated by S. 5, Merged States (Laws) Act, 1949, if it was passed with the same purpose and object as it was in the mind of the Central Legislature when they passed the three Central Acts. The Courts of law will, therefore, have to be guided more by the purpose and the object of the enactment than by the similarities or dissimilarities, though the similarities and also the dissimilarities will have to be taken into consideration in determining the object and purpose of the various Acts. 5. It was, on the other hand, urged on behalf of the plaintiff that two enactments should be deemed to be corresponding laws only if they contain similar provisions. 5. It was, on the other hand, urged on behalf of the plaintiff that two enactments should be deemed to be corresponding laws only if they contain similar provisions. Reliance was placed upon - 'Kaka Ramji Laxman v. State of Kutch', AIR 1954 Kutch 15 (C). In case by similarity of provisions, Vakil, J.C., meant the similarity of the purpose for which the enactment was made, I have no reason to differ from his opinion. But if it was meant that the two provisions must be identical, I with respect differ from his opinion. If such a view is accepted it will happen in majority of cases that there would be two different enactments on the same subject applicable to a State one which was applicable from before and the other which was extended under the Merged States (Laws) Act, 1949, and many of them would be self contradictory. It will not be possible for the Courts to hold that a part of an enactment on procedure or on any other point was applicable, while the other enactment on. the same matter was not applicable. Chaos will prevail and it will not be known to the public under which law the courts are to be moved and similarly the Courts will be handicapped in following the correct law. 6. To sum up, the Bhopal Charitable and Religious Trusts Act, 1934, will be deemed to be a corresponding law and to have been repealed if its object and purposes were the same as those of the three Central Acts referred to above, which were extended to Bhopal State under the Merged States (Laws) Act, 1949. While determining the object and the purpose of the Act, we will have to look not only to the heading and the preamble of the enactments but also to the provisions contained therein, as it can be that the object and purpose of an enactment was not properly expressed in the preamble, but would be apparent from the provisions made in the enactment. If it is found that the object of the Bhopal Act was something in addition to the object of the three Central Acts, a certain portion of the Bhopal Act would still be applicable to Bhopal State. Provided this portion can easily be separated from the rest and when considered by itself would be a self-contained Act. If it is found that the object of the Bhopal Act was something in addition to the object of the three Central Acts, a certain portion of the Bhopal Act would still be applicable to Bhopal State. Provided this portion can easily be separated from the rest and when considered by itself would be a self-contained Act. But if the object and purpose of the Bhopal Act on one side and the three Central Acts on the other are the same, the whole Bhopal Act will in the eye of law be a corresponding law, even if it contained a more advanced view or was leading to better administration of x the Trust properties, and under S. 5, Merged States (Laws) Act, 1949, would stand repealed. 7. Chapter II, Bhopal Charitable and Religious Trusts Act, 1934, bears the heading "Creation of certain public Trusts" but in reality this Chapter provides for the vesting in the Treasurer, to be appointed by the Government, or properties held in trust for a charitable and religious purpose and for its due administration. There are 8 Sections in this Chapter and they are virtually the reproduction of Sections 3 to 6, and 8 to 11 of the Charitable Endowments Act, 1890. Consequently, there can be no two opinions that this Chapter of the Bhopal Charitable and Religious Trusts Act, 1934 was repealed when under the Merged States (Laws) Act, 1949, the Charitable Endowments Act, 1890 became applicable to Bhopal State. 8. A perusal of S. 4, Bhopal Charitable and Religious Trusts Act will clearly indicate that all the Trust properties did not automatically vest in the Treasurer. Only the properties of such trusts vest in the Treasurer about which a notification had been issued by the Government on an application made in that behalf, and even then, at the discretion of the Government. In other words, there could be numerous trusts the properties of which did not vest in the Treasurer. Such trusts would have been governed by Chap. III onwards of the Bhopal Act. It is a matter for consideration if this Chapter will be regarded to correspond to the Charitable and Religious Trusts Act, 1920, and S. 92, Civil P.C. 9. In other words, there could be numerous trusts the properties of which did not vest in the Treasurer. Such trusts would have been governed by Chap. III onwards of the Bhopal Act. It is a matter for consideration if this Chapter will be regarded to correspond to the Charitable and Religious Trusts Act, 1920, and S. 92, Civil P.C. 9. The preamble and the heading of the Bhopal Charitable and Religious Trusts Act, 1934, lays down that this Act was provided for the better administration and supervision of Trusts created for public purposes of a charitable or religious nature. Chapter II would generally apply to the better administration of public trusts, while the other Chapters would generally apply to the supervision of such trusts. In case the Charitable and Religious Trusts Act, 1920, and S. 92, Civil P.C., relate to the better supervision of public trusts, even the other chapters of the Bhopal Act would correspond to the Central Acts. 10. The heading of the Charitable and Religious Trusts Act, 1920 is "An Act to provide more effectual control over the administration of charitable and Religious "Trusts". The words "effectual control and1 better supervision" have virtually the same meaning. The comparison of the headings thus suggests that Chap. Ill onwards of the Bhopal Act and the similar Act of the Central Government were enacted with the same purpose and object. There is some difference in the wording of the preambles of the two Acts. In the Bhopal Act the words used in the heading were repeated in the preamble, but in the preamble of the Central Act a reference is made to the provisions contained in that enactment. The preamble of the Central Act runs as follows : "Whereas it is expedient to provide facilities for the obtaining of information regarding trusts for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the direction of a Court on certain matters, and to make such provision for the payment of the expenditure incurred in certain suits against the trustees of such trust, .................". Under the Bhopal Act the supervision of the public trusts was to be through the Controller appointed by the Government under S. 11 of that Act. Under the Bhopal Act the supervision of the public trusts was to be through the Controller appointed by the Government under S. 11 of that Act. But in the Charitable and Religious Trusts Act, 1920, no such provision was made and apparently it was considered better to leave such control over the trusts in the hands of the persons interested in the trusts than to vest the supervision in an agency, either official or non-official. This appears from the various Sections of the Charitable and Religious Trusts Act, 1920. Section 3 gives the power to any person having an interest in the public trust to move the Court for an order embodying all or any of the directions enumerated therein, i.e., to direct the trustees to furnish the petitioner through the Court with particulars as to the nature and objects of the trust and of the value, condition, management and application of the subject-matter of the trust and of the income belonging to and as to any of these matters, and' also for a direction that the accounts of the trust be examined and audited. The examination of the accounts and their auditing could be with no other purpose than to ascertain if the property of the trusts were being properly managed and all the incomes were duly realised1 and credited to the account and also whether the expenses alleged to have been incurred on or towards the trust were proper. Such an examination and auditing of the accounts would always be a good check on the trustees and make them properly administer the trust properties, specially when they could know and in fact, feel that as trustees they alone were responsible for the administration of the trust properties and their action could be questioned by anyone interested in the trust. Similarly, the trustees would have felt bound to properly maintain the trust properties and to carry out the purposes of the trust, as under sub-cl. (1) any person interested in the trust could ask for such information through the court. Though, S. 3 has not been drafted so as to indicate at a glance that the right of supervision was being given to the members of the public having an interest in the trust, yet the only purpose which this Section could serve would be to keep a proper control over the administration of the trust properties. Though, S. 3 has not been drafted so as to indicate at a glance that the right of supervision was being given to the members of the public having an interest in the trust, yet the only purpose which this Section could serve would be to keep a proper control over the administration of the trust properties. In other words, it will be by the case (sic.) of this Section that a better supervision can be exercised over the trust properties to obviate any possibility of the trust being mis-managed. The further action which such persons can take would be under S. 92, Civil P.C., under which the Advocate General or two or more persons with the consent in writing of the Advocate General, can institute a suit for various purposes connected with the proper and due administration of the trust. In other words, the control and supervision which the Controller was to exercise under Chap. Ill onwards of the Bhopal Charitable and Religious Trusts Act, 1934, would be exercised by the members of the public having an interest in the trust properties by utilising the provisions of the Charitable and Religious Trusts Act, 1920, and if necessary, by filing a suit under S. 92, Civil P.C. Considering that Chap. II, Bhopal Charitable and Religious Trusts Act is verbatim the same as the Charitable Endowments Act, 1890, it can rightly be inferred1 that the Bhopal Act was drafted on the lines of the Central Acts, the Charitable and Religious Trusts Act, 1920, and the Charitable Endowments Act, 1890, though the Legislature decided to invest such powers not in the public but in a person to be appointed as Controller by the Government. The difference in the two Acts is thus in the mode of exercise of supervision i.e., the authority who can supervise the proper administration of the trust, and not in the object of these Acts. 11. The other provisions of the various Acts lead me to a similar inference. Under S. 7(1), Charitable and Religious Trusts Act, 1920, the trustees can ask for the directions of the Court on any question affecting the management or administration of the trust properties. Under the Bhopal Act, the trustees can seek such a direction, advice or opinion of the Controller under S. 13. Under S. 7(1), Charitable and Religious Trusts Act, 1920, the trustees can ask for the directions of the Court on any question affecting the management or administration of the trust properties. Under the Bhopal Act, the trustees can seek such a direction, advice or opinion of the Controller under S. 13. Thus, the Controller was given the powers as were conferred in the Courts under the Charitable and Religious Trusts Act, 1920. The powers and duties of the Controller are enumerated by way of illustration under S. 12(2) of the Bhopal Act. Many of these powers are similar to the orders which a Court would pass in a suit under S. 92, Civil P.C. Under S. 16(1)(c) of the Bhopal Act the trustees are to submit account to the Controller which are to be audited by Auditors appointed by the Government under S. 19(1). Under the Central Act of 1920 such auditing is to be done under the orders of the Court. Section 21 of the Bhopal Act provides that the State Advocate or with his consent in writing, any person interested in any public trust may apply to the Controller to institute an enquiry relating to the administration of the trust. On the other hand, under the Central Act such an enquiry is to be conducted by the Court in a suit under S. 92, Civil P.C. 12. A part of S. 27(1) of the Bhopal Act is on the lines of S. 6, Charitable and Religious Trusts Act, 1920. Section 27(1) of the Bhopal Act provides that on the report of the Controller the trustees shall be liable to removal from office by the Government; of course, on the ground of breach of trust or for mismanagement of the trust properties. Similarly, it is laid down in S. 6 of the Central Act of 1920 that if a trustee without reasonable excuse fail to comply with an order made under sub-cl. (5) of S. 5 of that Act, he shall, without prejudice to any other penalty or liability which he may incur under any law for the time being in force, be deemed to have committed a breach of trust affording ground for a suit under the provisions of S. 92, C.P.C. 13. (5) of S. 5 of that Act, he shall, without prejudice to any other penalty or liability which he may incur under any law for the time being in force, be deemed to have committed a breach of trust affording ground for a suit under the provisions of S. 92, C.P.C. 13. From the above it will, therefore, appear that under the Central Acts the power to see to the due administration of the trust properties was entrusted to the members of the public and to the Court but under the Bhopal Act of 1934, most of these powers were conferred on the Controller to be appointed under S. 11 of the Act or were to be exercised by the Government. This is simply the result of a difference in opinion as would be found among various legislative bodies. One legislative body may regard a public servant to be more suited for due supervision of a public trust. This appears to be the opinion which had prevailed with the framers of the Bhopal Act of 1934. The other body of legislators can have greater faith in the public and in the Courts of law and consequently may leave the due supervision of the administration in the hands of the public with the assistance of the Court. Whatever the procedure was laid down, it was with the sole object to provide for a machinery for the supervision of the administration of the trust properties. In these circumstances, Chap. III onwards, of the Bhopal Charitable and Religious Trusts Act, 1934 must be said to be corresponding to the three Central Acts referred to above and which in view of S. 5, Merged States (Laws). Act, 1949; would stand repealed. 14. The question of corresponding terms can be considered from another aspect also. When a new law is passed to consolidate or to amend on a large scale a corresponding old law or laws on the subject, a provision is intensibly (sic) incorporated to repeal the old corresponding laws. A comparison of the new law and the repealed laws can in majority of cases was (illegible) for determining corresponding laws. When a new law is passed to consolidate or to amend on a large scale a corresponding old law or laws on the subject, a provision is intensibly (sic) incorporated to repeal the old corresponding laws. A comparison of the new law and the repealed laws can in majority of cases was (illegible) for determining corresponding laws. In the Uttar Pradesh Muslim Wakfs Act, 1936 (U. P. Act 13 of 1936) and the Muslim Act, 1954 (Act 29 of 1954) it is clearly provided that the Charitable Endowments Act, 1890 and the Charitable and Religious Trusts Act, 1920 will not apply to Muslim Wakfs, indicating there by that the latter two Acts correspond to the former Acts. Provisions of the controller appointed under S. 11, Bhopal Charitable and Religious Trusts Act, 1934, are materially the same as of the Board established under U.P. Act, 13 of 1936 and of the Board established under Act 29 of 1954 and originally the Bhopal Act can be deemed to correspond to the two Central Acts of 1890 and 1920. 15. To sum up, by virtue of S. 5, Merged States (Laws) Act, 1949, the Bhopal Charitable and Religious Trusts Act, 1934 (Act No. 6 of 1934) is (inoperative in the State of Bhopal since 1-1-1950. 16. There is no clear provision for the taxing of costs in references made under S. 113, C.P.C., but considering that in a reference of the present nature, the parties have to properly study the case from the constitutional point of view, it would be but proper that such a reference should be treated at par with petitions for a writ under the Constitution of India, i.e., costs should be allowed at the rate of Rs. 75/-. Costs of the Government Advocate Rs. 75/- will be payable by the plaintiff, while the inter se : costs between the plaintiff and the defendants will depend on the final decision of the suit. 16. The record should now be returned to the Subordinate Judge with a copy of this order containing the opinion of this Court. Reference answered.